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[2018] ZAFSHC 199
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Preller Plain Apteek v Hesketh; In Re: Hesketh v Preller Plain Apteek (5900/2008) [2018] ZAFSHC 199 (8 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5900/2008
In
the matter between:
PRELLER
PLAIN
APTEEK
Applicant
/
Defendant
and
BERNADETTE
MARION
HESKETH
Respondent/Plaintiff
In
re:
BERNADETTE
MARION
HESKETH
Plaintiff
and
PRELLER
PLAIN
APTEEK
Defendant
HEARD
ON:
1 NOVEMBER 2018
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
08 NOVEMBER 2018
[1]
The applicant seeks leave to appeal against my judgment delivered on
29 June 2018. In respect of that judgment the applicant
seek leave to
appeal against the decision on the merits. It should be noted that
merits and quantum were separated per agreement
in terms of 33 (4).
[2]
The grounds of appeal filed on behalf of the applicant are eleven in
number and clearly set out in the notice of application
for leave to
appeal. I do not intend to deal with them individually as there is an
overlap and some repetition. They can be categorized
broadly premised
on hearsay evidence, the reasoning of Dr. Edeling and credibility of
the defendant.
[3]
The essence of the applicant’s argument is that hearsay
evidence was accepted relating to Electroencephalography (EEG)
reports compiled by authors who did not give evidence. It was argued
that section 3(1)(a) of the Law of Evidence Amendment Act
45 of 1998
is applicable any this matter.
[1]
Relying on
S
v Ndlovu
[2]
and
Withuhn
v Road Accident Fund
[3]
, counsel submitted that hearsay evidence is not evidence at all
unless admitted in accordance with the provisions of the
aforementioned
Act.
[4]
The second point of contention relates to the reasoning of Dr.
Edeling. It was argued that his reasoning relies on a series
of
events commencing with an injection, followed by the loss of
consciousness and later an excruciating pain in the back. Accordingly
this reasoning was flawed and the chain of logical reasoning was
broken particularly given the existence of the weak spots in her
brain that could have triggered the epileptic fit.
[5]
The last aspect relates to the mutually destructive versions of the
plaintiff and defendant regarding the site of the injection
and the
needle used. It was submitted that the plaintiff adapted her evidence
in order to advance her case. She contradicted herself
in material
respects.
[6]
The application is opposed by the respondent. Counsel for the
respondent submitted that the first ground relating to hearsay
evidence is devoid of any logical reasoning. He quoted and relied on
the decision in
Glenn
Marc Bee v Road Accident Fund
particularly paragraph 66
[4]
. In
that matter the court dealt with the approach to be adopted when
dealing with expert witnesses were there is an agreement between
experts. In the event that the party does not repudiate such
agreement “the other litigant is entitled to run the case on
the basis that the matters agreed between the experts are not an
issue”. There was such and agreement between Drs Edeling
and Wilkinson. In this matter it was common cause that the
plaintiff did not suffered any epileptic fit prior to the unfortunate
incident. She suffered the epileptic fit at the time and for some
time thereafter had to be put on medication for it.
[7]
Dealing with the reasoning of Dr. Edeling, it was contended that he
explained that when there is a disc rupture, it takes time
for the
disc material to migrate to other parts of the body. No wonder
shortly after the fall the test proved negatively. However,
few days
later she had to be operated on.
[8]
Counsel submitted that no court will lightly interfere with
credibility findings of the trial court. He urged me that the
application
for leave to appeal be dismissed with costs.
[9]
The test to be applied in an application such as the present is that
referred to in
section 17
of the
Superior Courts Act 10 of 2013
.
Section 17(1)
provides:-
“
Leave to appeal
(1)
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that-
(a)
(i) the appeal would have a reasonable prospect of success;
or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit
of
section 16(2)(a)
; and
where the decision
sought to be appealed does not dispose of all the issues in the case,
the appeal would lead to a just and prompt
resolution of that real
issues between the parties.”
[10]
It is now trite law that the bar of the test has been raised as
opposed to the traditional test before leave to appeal is granted.
[5]
[11]
I have painstakingly perused and considered the grounds that have
been raised by the applicant. Those have been covered
in detail
in my judgement. I am in agreement with counsel for the
respondent regarding his submission in opposition on all
three main
issues which form the basis for the application. I could not
find any ground upon which another court may arrive
at a different
conclusion. There are no conflicting judgements on the matter.
Therefore the appeal ought to be dismissed.
[12]
In the result, I make the following order:-
12.1 Leave to appeal is
refused with costs.
______________
MATHEBULA,
J
On
behalf of Applicant/Defendant: Adv. D.J. Vd Walt SC
Assisted
by: Adv. H. J. Benadè
Instructed
by: Symington & De Kok
On
behalf of Respondent/Plaintiff: Adv. S. Joubert SC
Assisted
by: Adv. H. F. Botha
Instructed
by: Bezuidenhout Inc.
[1]
Hearsay
evidence.- (1) Subject to the provisions of any law, hearsay
evidence shall not be admitted as proceedings, unless-each
party
against whom the evidence is to be adduced agrees to the admission
thereof as evidence at such proceedings
[2]
2002(6)
SA 305 (SCA) paras [13] and [14]
[3]
2017
ZAGPJHC 285 para [20] to [22]
[4]
2018 ZASCA 52
[5]
Acting
National Director of Public Prosecution and Others v Democratic
Alliance (unreported, GP case number 19577/09 dated 24
June 2016)
paragraph 25.